Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/09691/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated
On: 21st November 2016
On: 22nd November 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Muhammad [N]
(No anonymity direction made)
Appellant
And

The Secretary of State for the Home Department
Respondent

For the Appellant: Mr Plowright, Counsel instructed by Paul John & Co
For the Respondent: Mr Duffy, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The Appellant is a national of Pakistan date of birth 27th February 1979. He appeals with permission the decision of the First-tier Tribunal (Judge Talbot) to dismiss his appeal against a decision to refuse to vary his leave and to remove him from the United Kingdom pursuant to s47 of the Immigration Asylum and Nationality Act 2006.

Background and Matters in Issue
2. The Appellant arrived in the United Kingdom in November 2011 with leave to enter as a Tier 4 (General) Student Migrant. His leave was still valid when on the 31st December 2014 he made an application to vary his leave on human rights grounds. The basis of this application was set out in a letter from his representatives dated 31st December 2014. He faced a financial burden returning to Pakistan and it would interrupt his preparations for further studies. He had an established private life in the United Kingdom.
3. The Respondent unsurprisingly refused this application which entirely failed to identify what possible obstacles the Appellant might face in returning to Pakistan, and indeed to explain what protected Article 8(1) he had established in the three years he had spent in the United Kingdom.
4. The Appellant appealed and requested an oral hearing. Notices of hearing were sent out but on the appointed day, the 14th March 2016, there was no appearance from the Appellant or his representative. The court clerk telephoned Paul John & Co and were informed that the Appellant would like the matter resolved on the papers.
5. Judge Talbot's written decision was promulgated on the 31st March 2016. The determination notes the case put in the solicitor's letter of the 31st December 2014 (as summarised above). At paragraph 8 the determination reads "there is no evidence whatever before me to show that he meets the requirements for leave to remain?". The appeal was thereby dismissed.
6. The Appellant now appeals on the grounds that the Tribunal failed to take material evidence into account. The evidence in question consists of two witness statements. One is from the Appellant himself and is dated the 29th September 2015. He asserts at paragraph 1 that he is the "legitimate spouse" of an EEA national. At paragraph 3 he explains that in fact he is not married, but intends to be so, and that his partner is Portuguese national Mr Rinkesh [T]. He asks the Tribunal to consider that his country of origin does not recognise same sex marriage. The second statement is from Mr [T]. He writes that he met the Appellant using an online dating app and that he found him to be dashing and interesting and that he has fallen in love. They are intending to get married. The Appellant submits that it is not clear from Judge Talbot's determination whether he took those statements into account.
7. The Respondent opposes the appeal a) as it was not clear whether or not those statements had in fact been served and b) because even if the Judge had taken them into account they could not possibly have led to the appeal being allowed.
My Findings
8. The file before me contains a Memorandum addressed to Judge Talbot from admin staff at Taylor House. It is dated the 21st March 2016 and reads "please find attached correspondence for the above appeal. According to our records the file is in your possession. I would be grateful if you could place this correspondence on file". The correspondence in question is a letter from Paul John & Co Solicitors dated 11th March 2016 marked 'urgent' requesting that the appeal is determined on the papers; attached are the two witness statements. It is not clear from the file whether this Memorandum reached Judge Talbot before he wrote his determination, or whether it was placed on the file after it was promulgated. What is clear is that Paul John & Co posted those documents five days before the hearing, and that they are not reflected in the determination. Be it an omission on the part of the Judge, or an administrative failing, that evidence was not addressed.
9. I am entirely unsatisfied that this error is in any way material. The statements themselves were very brief and were drafted in inconsistent, and in places un-intelligible terms. The Appellant is clearly not the "legitimate spouse" of an EEA national since no marriage or civil partnership has taken place. They do not even appear to be living together. No supporting evidence was submitted, and I reject Mr Plowright's suggestion that the Judge should have had regard to the country background material in the public domain: the Judge was not referred to any of this material, nor was it put before him. It is inconceivable that a properly directed Tribunal could have allowed the appeal on Article 8 grounds based on the bare assertions made in these statements. At their highest they showed that the Appellant had a Portuguese boyfriend whom he had been seeing for less than a year. There was no evidence that the Appellant's claimed relationship with Mr [T] would present him with any obstacles in returning to Pakistan, nor that it would be a disproportionate interference with his private life to remain
10. I note that the Appellant's solicitors have now seen fit, at this stage in the proceedings, to submit a large bundle of new evidence relating to the Appellant's sexuality, his private life in the United Kingdom and the impact upon him of return to Pakistan. None of that evidence is relevant to whether Judge Talbot erred in law. If the Appellant wishes to make a fresh claim to the Respondent on the basis of this evidence that is a matter for him.
Decisions
11. The determination of the First-tier Tribunal contains no error of law and it is upheld.
12. I was not asked to make an order for anonymity and on the facts I see no reason to do so.

Upper Tribunal Judge Bruce
21st November 2016